Strickland & Smith, Inc. (“S & S”) and Top Quality Produce, Inc. (“Top Quality”) brought separate suits against Billy Williamson, Williamson Produce, Inc., and Classic Vidalia, Inc. (collectively “Williamson”) for damages which arose from (1) an alleged joint venture to grow onions, and (2) the packing, grading, and storage of onions thereafter. Billy Williamson and Williamson Produce, Inc. brought a third-party action against Bobby Smith, a principal of S & S and Top Quality to recover the balance owed on a note and to prevent Smith from defaulting on a lease agreement for farmland. All cases were consolidated for trial and were heard without a jury by the trial court. Williamson appeals from the denial of the motion for new trial. For the reasons that follow, we affirm in part, reverse in part, and remand with direction.
“There is a presumption in favor of the validity of verdicts. And after rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.” (Citations and punctuation omitted.)
Nationwide &c. Ins. Co. v. Wiley,
Williamson was also responsible for selling the 8,740 field bags of onions sorted, graded, and packed at the S & S storage facility. The evidence shows that Williamson picked up all 8,740 field bags for sale. Top Quality claimed that Williamson failed to account for the sale of 1,323 bushels of jumbo onions and 672 bushels of medium onions. The trial court awarded Top Quality $26,450.65 plus interest for the fair market value of the onions for which Williamson did not account. Top Quality’s remaining claims for damages for breach of fiduciary duty and the difference between the fair market value and the selling price of the remainder of the onions were denied by the trial court for insufficient evidence.
S & S, who was not a party to the joint venture, brought suit to recover for damages which arose out of the sorting, packing, and storage of onions at its facility. Of the four counts asserted by S & S, the trial court granted S & S relief on Count 2 alone.
Williamson took possession of the McLain onions. At the time Williamson took possession of the McLain onions, the Lillard onions were thought to be of equal quality. Smith testified that S & S had a purchaser located in Asheville, North Carolina, for the Lillard onions for $20 per 40-pound box, totaling $80,450. However, when the Lil-lard onions were taken out of storage, a sampling showed the onions to be diseased with center rot. Only about 40 percent were marketable. S & S was unable to fulfill its contract with the Asheville purchaser. Smith received only $2,000 for the Lillard onions. The trial court awarded S & S $78,450 plus interest for the loss it incurred. 1 Held:
1. Appellants argue that the evidence was insufficient to support the judgment in favor of Top Quality. Appellants assert (1) that the trial court failed to consider that Top Quality was entitled to only one-half of the damages as the profits and losses were to be split equally between the parties, and (2) that the trial court failed to take into account the expenses for the cost of the sale.
A trial court may grant a motion for new trial if, in the exercise of its discretion, it finds that a jury’s verdict was against the weight of the evidence. OCGA § 5-5-21. However, when a trial court denies such a motion, the appellate court does not have the discretion to grant a new trial on that ground. “(W)e can only review the evidence to determine if there is any evidence to support the verdict. (Cit.)” Drake v. State,241 Ga. 583 , 585 (1) (247 SE2d 57 ) (1978).
Cook v. Huff,
(a) The evidence showed that under the terms of the joint venture Top Quality was to provide the land and the labor, and Williamson was to provide the money to fund the joint venture. After deducting all expenses, the parties were to split the profits or losses. Top Quality produced evidence through the testimony of Smith that the joint venture produced a total of 10,742.25 harvested field bags of onions. Eight thousand seven hundred forty field bags were graded by S & S and stored in S & S’s facility and 2,002.25 field bags were graded by Williamson and stored in Williamson’s facility. Further, Smith testified that the 2,002.25 field bags stored in Williamson’s facility had a fair market value of $17,265.64 and that Williamson only reported sales of $3,581.95, leaving a $13,683.69 loss. Additionally, Smith testified that Williamson was responsible for selling the joint venture’s 8,740 field bags that were stored in S & S’s storage facility and that, on the final accounting, Williamson failed to account for the sale of 1,323 bushels of jumbo onions and 672 bushels of medium onions, which had a fair market value of $26,450.65.
However, there was
no
evidence that Top Quality was entitled to more than one-half of the profits under the joint venture agreement. Therefore, that portion of the trial court’s judgment awarding Top Quality the entire amount of the previously unaccounted-for profits must be set aside, and the trial court is directed to enter judgment for one-half of the $35,682.77. See
Scott v. Thompson,
(b) However, contrary to Williamson’s assertions that the costs of sale, including packaging, were not included in the sale, there
was
evidence that the total expenses of the joint venture were factored into the calculation of damages awarded Top Quality. The accounting prepared by Williamson and provided to Top Quality included a deduction for “onion growing and harvesting expenses.” While the parties may have disagreed on whether Williamson was also entitled to deduct interest he alleged was due on the money he advanced, the trial court was entitled to conclude that Williamson was not entitled to interest under the joint venture agreement as contradictions in evidence and witness credibility are for the factfinder to resolve.
Plemons v. Weaver,
2. Williamson further contends that the trial court’s award of $78,450 to S & S, based on the swap of onions is based upon speculation and conjecture, as S & S’s expenses were not taken into account when arriving at the damages. We agree.
To recover lost profits, S & S “ ‘must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.’
Kitchens v. Lowe,
Further, there was evidence that Tom Laster had agreed to buy the entire 3,218 bushels of S & S’s McLain onions at $20 per 40-pound box. When S & S discovered that the Lillard onions had center rot, S & S was unable to substitute the Lillard onions for the McLain onions it had given Williamson and could not fulfill its order to Laster. There was evidence that the 3,218 bushels of McLain onions would divide into 4,022.50 40-pound boxes which would have given S & S a gross profit of $80,450. Because of the center rot, S & S received only $2,000 for the Lillard onions. The trial court deducted the $2,000 from the $80,450 and awarded S & S $78,450.
However, the evidence shows that the price of $20 per 40-pound carton was based on the onions being delivered to Asheville, North Carolina, packaged in 40-pound boxes. There was no evidence in the record to indicate what expenses S & S would have incurred
3. Based on our holding in Division 2, the remainder of Williamson’s enumerations are moot.
Judgment affirmed in part and reversed in part and case remanded with direction.
Notes
Additionally, the trial court awarded defendants $12,500 on their third-party action/ counterclaim against Smith for the balance due on the note between the parties. However, this award has not been enumerated as error in this appeal.